1. INTERFACE WITH CHARITY
LAW AND THE CHARITY
COMMISSION
Rosamund McCarthy
Partner - BWB
October 2010

2. Summary of Talk
 What kind of public law challenges
constitute political campaigning?
 How much political campaigning can a
charity undertake?
 When is it advisable to seek advice or an
order from the Charity Commission/Court
to protect Trustees regarding the costs of
the legal action (eg charity’s legal costs
and costs of the other side)?

3. Definition of Lawful Charity Campaigning
Type 1: Non Political Campaigning
 Public awareness raising and changing
public attitudes on a particular issue.
 Activities to change the policy or practice of
a business or company, or other
independent/private bodies.

4. Definition of Lawful Charity Campaigning
Type 2: Political Campaigning – CC9 Guidance
 Activity by a charity which is aimed at securing,
or opposing, any change in the law or in the
policy or decisions of central government, local
authorities or other public bodies, whether in this
country or abroad. It includes activity to
preserve an existing piece of legislation, where a
charity opposes it being replaced or amended.

5. Definition of a Public Body - CC9 Guidance
All ministries, departments and agencies of government,
whether local, regional, national, in the UK or
overseas. Examples include:-
 The UN, other international bodies, and their agencies.
 The EU and its associated bodies.
 The World Bank and similarly constituted bodies.
 NHS Trusts
 Regional assemblies, development agencies and
corporations.
 N-DPBS (but not those that are registered charities)
 Similar Bodies and agencies in other countries.

6. HOW MUCH CAMPAIGNING CAN A CHARITY
CARRY OUT?
Type 1 = 100% of resources
Non Political
Campaigning
Type 2 = CC9 guidance (March
Political 2008): political
Campaigning campaigning cannot
be the sole and
continuing activity

7. Trustees’ duties (1)
To be considered in respect of both Type 1
and Type 2 activities. Always be aware of
the objects of a charity e.g.
 Education
 Religious
 Prevention or relief of poverty
 Human rights
 Animal welfare

8. Trustees’ duties (2)
To be considered in respect of both Type 1 and Type 2
activities
 Is there a reasonable expectation that it will further the
charity’s purposes?
 How likely is it that the campaign will reach its objective?
 What other activities would achieve the same objective?
 Is the use of resources to promote the campaign justified?
 Duration and financial cost
 Would other activities be more cost effective?
 Is campaigning to be the only activity?

9. Trustees’ duties (3)
 To comply with all legal requirements including charity
law, CC9 guidance, public order law e.g. SCOPA 2005,
defamation law, election law etc
 To manage the risks, including the reputational risks
 Risk of acting outside purposes
 Is there a sound and factually accurate evidence
base?
 Risk to independence e.g. public perception if
charity’s policy coincides with that of a political party

10. Involving the Charity Commission
 Consent of the Charity Commission is always
required for Charity Proceedings, which in
essence are proceedings relating to the
administration of a charity eg interpretation of
the constitution, members’ action against
Trustees.
 Public law remedies are, generally speaking,
not Charity Proceedings and therefore the
consent of the Charity Commission is not
required.

11. Involving the Charity Commission
Continued…
Is it ever advisable to seek the consent of the Charity
Commission, even though this is not required?
 Starting Point: Provided the Charity has the
funds, all Trustees are entitled to be indemnified
out of the assets of a charity for costs and
expenses, including legal costs, properly incurred.
 However, the more risky and expensive the
litigation is likely to be, the greater the need to
consider applying for the protection of the Charity
Commission.

12. Powers of the Charity Commission
 Section 29 Charities Act 1993 gives the
Commission power to advise Trustees and where
a charity acts in accordance with the advice, they
are deemed to have acted properly.
 Other powers eg S26 and permission to take
Re:Beddoes.